Ima Fish’s Techdirt Profile

About Ima Fish

I'm a lawyer with a concentration in IP. I currently work as a clerk for a judge in the midwest. I also am a contributing editor over at John Dvorak's blog. (http://www.dvorak.org/) You can check out my rantings on my blog here. (http://logictortured.com/)

from the too-much-ownership-culture dept

Hello fellow Techdirtheads. I'm Ima Fish and am an attorney with a concentration in IP law. But unlike most lawyers who study IP law, I want to drastically curtail how it presently operates. So when I talk about my "favorite" posts, I'm being satirical, of course.

As anyone who reads this site knows, ownership culture has gone way past mere copyright, patents, and trademarks. The pervasiveness of ownership culture can be seen in my favorite post of the week, Timothy's post concerning Shawn Cheek, who believes he has a monopoly on writing letters on the keys of a keyboard to better teach students. Unfortunately, despite having no such copyright or patent, Mr. Cheek has had videos removed from YouTube. That's very troubling.

Another troubling post is Mike's from Tuesday and involves the patenting of vegetables in Europe. The mere idea of giving out monopolies over nature should send a shiver down everyone's spine. Especially when, as the movie Jurassic Park taught us, nature finds a way. This can be seen in a related story, wherein experimental GMO wheat from Monsanto, never cleared for release, was found growing "naturally" by a farmer in Oregon. Will Monsanto go after the farmer who found it for violating their patents? If he had tried to harvest it rather than destroy it, Monsanto might have had a chance based upon the US Supreme Court decision in Bowman v Monsanto. Will farmers in Europe eventually face the same legal threat, merely because nature followed its course?

Simply put, patenting acts of nature actually make acts of nature illegal. Do you feel that shiver now?

One of my other favorite themes at Techdirt is the fact that the copyright industry does not operate in a free market. This can be seen in three posts this week. First, the news that police in the UK are allowing employees of the entertainment industry to arrest and interrogate alleged infringers. While it makes no sense to us, it does from the perspective of the copyright industry when you realize the industry does not actually have customers. It has government granted tolls people are obligated to pay under force of law. So it makes sense for the music and movie industries to hire a bunch of former police and prosecutors to ensure every dime is collected. But the fact politicians are allowing it is very troubling.

While stopping the progress of technology may seem outrageous to us, it makes sense for the copyright industry. Because the copyright industry has no actual customers, it has no clue how to compete. So whenever a new technology is released, rather than rolling up their collective sleeves and coming up with better product, the copyright industry sues, e.g., the player piano, the radio, cable TV, DVRs, etc. And as long as the copyright industry's business is collecting tolls rather selling a product or service to customers, these attacks against technology will continue.

Another favorite theme of mine here is the copyright industry's desire to eliminate the safe harbor provisions of the DMCA. The DMCA was enacted when I was in law school, and it was hotly debated among students and professors. The only commonality of thought we all had was that if the law was passed, it absolutely needed safe harbors. Even the copyright maximalists in the debate conceded that. It was clear to everyone that without safe harbors, the internet would be destroyed. But as Mike posted Wednesday, the RIAA is back at it again.

People tend to ask, "Why should internet providers act as the copyright industry's police force?" But in my opinion, that's not what this is really about. The RIAA and the MPAA do not really care about stopping piracy. Seriously. All they actually want is a new revenue stream. Forcing Google, Yahoo, AOL, Facebook and others to pay is what the copyright industry considers a new business model.

This would basically be licensing. Let's look back to when copyright first started covering performances. Back then, the music industry could have sued individual bands or audience members. Instead they sold licenses to bar, club, and theater owners. And by "sold" I mean owners were forced to pay for licenses.

The same will happen once Google and the rest start paying. For example, the music industry won't have to concern itself much with selling CDs or advertising. It'll just sit back and collect its tolls from large internet service providers, increasing those tolls every few years, of course.

My last favorite post involves the destruction of the right of first sale in relation to the console gaming industry. As posted by Timothy on Wednesday, it is hoped that Sony learns from the backlash and supports used games in the upcoming PS4.

In my opinion, don't hold your breath. Sony is the same company that took away the "other" OS option in the PS3, installed root kids on PCs via music CDs, and came up with the most convoluted anti-consumer way to sell digital music ever conceived. If Sony is our only hope to save first sale rights, we're screwed.

from the favoriting dept

This week's favorites post come from Ima Fish, who, when not using an assumed name, is an IP lawyer...

I'm sure most people read Techdirt for the insightful posts concerning the fast-changing world of IP. That's why I started reading it. But recently I discovered a new use. Cubical Exercising. Nearly every day there's a story that makes me shake my head in utter disbelief. My neck muscles have been getting a great workout.

Let me walk you though last week's workout routine. On Monday there was a post in which Universal Music Group Distribution President Jim Urie claimed we need stronger IP laws because the "online theft of music is killing artists" as well as "destroying jobs, dreams and careers."

I'll ignore the "killing" comment as nonsensical hyperbole. But the complaint against jobs being destroyed is dangerously ignorant. Every time there's a disruptive change in the marketplace, jobs will be lost. Just as new jobs will be created.

When CDs replaced LPs and put LP manufacturers mostly out of business, was it the government's job to step in and pass laws against the production of CDs? I certainly don't think so. When the market for giant SUVs finally crashed in the US, was it the government's job to pass laws making the production and sale of small and efficient vehicles illegal? I sure hope not.

The music industry is changing from an ownership culture to a consumer culture. Publishers sell sheet music. Labels sell LPs, CDs, and singles. Even in the days of illegal Napster, you'd share music with friends by giving them a copy, either burned to a CD or copied to a flash drive. However, nowadays if you want to share a song with a friend, you simply post the YouTube video onto his or her Facebook wall. We no longer need physical copies or digital representations of physical copies to enjoy music. Those days have passed.

Nothing was done to help displaced buggy-whip factory workers. But the music industry middlemen are very wealthy and connected. So, unfortunately, when they complain to the government, the government listens and takes action. No matter how completely unreasonable the complaint may be.

It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose.

That seems logical. Griggs wanted to keep people from publicly talking about his alleged affair, but the injunction utterly failed. But the judge does not stop there.

But in so far as its purpose is to prevent intrusion or harassment, it has not failed.

What the flagnard?! The judge continues in his attempt to destroy the foundations of logic and reason...

The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life.

Sorry judge, but the fact that everyone is ignoring your super injunction does not mean you need a super mega injunction. It means that the underlying premise that Griggs needed an injunction in the first place was flawed. It means that people want to talk publicly about Griggs and nothing you do will stop them. (Unless you are the type of person who thinks High Chancellor Adam Sutler was the hero in the film V for Vendetta.)

There were two great head-shakers last Wednesday. First was Senator Harry Reid's bizarre assertion that passing the Patriot Act without any modification was "an excellent compromise." Wow.

The other great head-shaker from last Wednesday was the ex-boyfriend who wants royalties for inspiring songs his ex-girlfriend wrote about their breakup. In the past, I've written about the absurdities of our new ownership culture. Newspaper writers claimed that other media outlets were stealing stories, which they "stole" themselves from the original sources. Aretha Franklin claimed she was owed money merely because she wore a hat. And the producers of Britain's Got Talent claimed that Google owed them money for providing free bandwidth and for bringing free attention and exposure to Susan Boyle's amazing talents.

Let's get this straight people, merely because someone else is making money does not mean you're owed money.

That may seem insane, but it is all a part of Sony's business plan. What is Sony's business plan? Treating its customers with utter contempt.

Ever since Sony became both a technology and content company, all it cares about is protecting its precious content. So it puts rootkits on its music CDs. It releases portable music players, but used the asinine ATRAC format. And it removes the "other OS" option in its Playstation 3, but leaves customer information completely open and unencrypted on its servers.

So in Sony's bizarro collective-mind, it's perfectly reasonable to destroy the movie theater experience in order to protect the movie theater experience.

Friday's head-shaking post comes from the New York Stock Exchange. The NYSE has proclaimed that any drawing, photograph, or representation of the NYSE trading floor violates its trademark.

I'm just glad this perversion of trademark law was not around back in the 80s. Otherwise, the film Trading Places would have had a truly sucky ending.

Well, I'm done with my neck exercises for this week. Let's keep our neck muscles in shape by checking back each and every weekday.

from the big-money-fail dept

Marion Maneker over at the Big Money website wrote a piece entitled "The Weird Logic of Paywall Challengers." He attempts to show that the arguments used by those against paywalls are illogical. He also attempts to show that paywalls are not only a good idea but a necessity for news websites.

First, a little background. Some internet news sites are making people pay to view content. That's called a paywall. You can't view the content without paying. So far the attempts to implement paywalls have been complete failures. For example, when Newsday set up a paywall, only 35 people paid. After the Times instituted a paywall, its readership dropped by 2/3rds. And because those articles are not being indexed by Google (or Bing or Yahoo), they're essentially invisible to people on the web.

So what's Maneker arguments in favor of paywalls? What errors in logic have those against paywalls made? Let's go through his points.

His first point is that even if ad revenues are back, news outlets should diversify by charging anyway. He doesn't seem to get this, but as I explained above, paywalls kill off advertising by driving viewers and readers away. So Maneker's argument that news outlets should diversify by relying on both advertising and paywalls fails as it is self contradictory.

His second point is that news outlets charging "for content has always been part of its long-term strategy." He's absolutely right that newspapers have tended to charge for content. However, that was never done for profit. Profits always came from advertising, classifieds, and obituaries.

There were two reasons newspapers did charge. The first was to cover the costs of publishing. However, those costs no longer exist in the digital realm.

The second reason newspapers charged was to show advertisers how many actual readers they had. If a newspaper publisher simply gave away its papers, it could claim that millions of people are reading when in fact no one is reading. People paying for newspapers is a pretty good indication to advertisers that people are in fact reading. But in the digital realm news outlets do not need paying customers to tell advertisers how many unique people are reading. All that information can be tracked automatically in real time. Heck, in the digital realm news outlets can give specific information about page views and what ads are working and what ads are not.

His third point is that "central to any media strategy should be the idea of charging for some content." Has he never listened to broadcast radio? Has he never watched broadcast TV? Has he never used Google, Facebook, or Twitter? And despite being contradicted by legitimate business models, his third argument is circular. He's essentially arguing that news outlets should charge for content because they should charge for content. It only concludes its premise without telling us why.

Along with his third point he pulls the following assertion out of his ass, "Digital distribution should make content much cheaper--but it shouldn't make it free." Why shouldn't it be free? He never explains.

Hundreds of years ago the most efficient means to distribute news was to print it on paper and deliver it locally. Times changed. Radio came along and made delivering news in real time more efficient. But it still lacked the newspaper's depth. TV news had the same problem. But the internet does not. It has the efficiency, the immediacy, and the depth. Because the distribution costs are essentially zero, economically speaking, there is no reason why the cost of the content should not also be free.

If Maneker's piece is any indication, the pro-paywallers' dream of making us pay for news is a lost cause.

Ima Fish’s Comments

"the Rolling Stone University of Virginia rape story debacle, Newsweek getting the inventor of bitcoin wrong, and the traditional print media's complete failure to report on the known rape accusations against Bill Cosby, are the internet's fault too"

First, I'm responding to a very specific point raised by Tim, "If there's any entity that can keep cops from being held accountable for their actions, it's police unions." My argument is that it's not the union's fault, it's our fault for letting it happen.

Second, there are such laws, but they're not enforced against cops as compared to the general population because politicians aren't willing to stand up against cops. No politician is willing to stand up against cops because s/he would likely not get elected unless s/he's strongly in support of law an order.

Once again, this is not the union's fault or the lack of laws, it's our fault.

It's easy to blame the unions, but the reason police unions have power is because we, through our politicians, give them power.

Factory workers used to have strong unions, but not anymore. Teachers used to have strong unions, but not anymore. The police still have strong unions because politicians will bend over backwards to protect cops. Because they feel they have to be "law and order" in order to get elected.

We could weaken police unions just like we did every other union, but no one is willing to take that first step.

"If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter."

But it appears that the opposite is true. In other words, if an actor did add sufficient originally to a performance, it would matter which actor a studio hired.

My point is, does the actor hold a copyright on that sufficient originality? In other words, if an actor is replaced in a role, can that first actor collect a licensing fee from the replacement actor based upon his "originality"? Would each new actor be forced to act differently than the previous actors to avoid infringing the first actor's sufficient originality?

Let's take it further, could Bruce Willis copyright his "cool under pressure/everyman" persona? Does Jason Statham violate Willis' copyright?

You're over-thinking this. Right now there is no copyright protection on an actor's performance. There is a copyright on the recording of the performance, but the performance itself has no protection in the US.

So there is no point talking about whether it was a work for hire, as that erroneously assumes there is copyright protection.

It's been said before, bad facts create bad law. I hate to say it, but I hope the studios fight strongly against this. To think that an actor should have a separate copyright in his or her performance is disturbing.

Keurig should have the right to lock down it's products anyway it likes. Neither the government nor competitors should be able to tell it how to build its products (other than for safety reasons, of course.)

However, the DMCA should not act as a shield to bar competitors from reverse engineering Keurig's designs.

Technology companies tend to over-promise and under-deliver. You'll read complaints from customers concerning soft/hardware where certain promised features were never included. My answer to that problem is to only buy what's sold, not what is promised to be sold.

And here's Keith proving my point. He wants to be paid a million a month, for a total of 18 million dollars for a product he promises to patent in 18 months.

I don't think customers would be getting much value for their money. Can you imagine if Nvidia sold a graphics card with the promise of patented technology a year and a half from now? Good luck with that.

The problem with the "moral rights" argument is that it's used to defend real "artists", but unfortunately is applied to everything.

For example, the RIAA claims that remixing an album for release on CD constitutes an entirely new copyright. Seriously, just messing with the bass, treble, and volume, and then putting it in a fixed state, is an entirely new copyright. Does that deserve a moral right to you? Do you feel the need for such a right every time you adjust the tone when you're listening to music?

And if I set up a camera to randomly take pictures, where does the lifelong "moral" right come from? Randomness, for some bizarre reason, is given a copyright. But seriously, where is the morality?!

And what about using software, or interns, to collect facts and push out newspaper articles? A collection of facts deserves copyright protection, unfortunately, but do you honestly think there's a moral component to that?

The purpose of copyright in the US was not to enforce some standard of morality. It was originally to compensate artists and writers to incentivize the continued creation of such works. Nothing more.

Well, we've learned one thing. The pharmaceutical industry has more clout with the feds than the shipping Industry. FedEx might want to consider giving some cushy jobs to outgoing Washington insiders. Among other things.